EXHIBIT 10.3
INDEMNITY AGREEMENT
This Indemnity Agreement (Agreement), dated as of __________________, is made by
and between Ambassadors Group, Inc., a Delaware corporation (the Company), and
__________________, a __________________ of the Company (the Indemnitee).
RECITALS
A. The Company is aware that competent and experienced persons are increasingly
reluctant to serve as directors or officers of corporations unless they are
protected by comprehensive liability insurance or indemnification, due to
increased exposure to litigation costs and risks resulting from their service to
such corporations, and due to the fact that the exposure frequently bears no
reasonable relationship to the compensation of such directors and officers;
B. The statutes and judicial decisions regarding the duties of directors and
officers area often difficult to apply, ambiguous, or conflicting, and therefore
fail to provide such directors and officers with adequate, reliable knowledge of
legal risks to which they are exposed or information regarding the proper course
of action to take;
C. Plaintiffs often seek damages in such large amounts and the costs of
litigation may be so substantial (whether or not the case is meritorious), that
the defense and/or settlement of such litigation is often beyond the personal
resources of officers and directors;
D. The Company believes that it is unfair for its directors and officers and the
directors and officers of its subsidiaries to assume the risk of large judgments
and other expenses that may be incurred in cases in which the director or
officer received no personal profit and in cases where the director or officer
was not culpable;
E. The Company recognizes that the issues in controversy in litigation against a
director or officer of a corporation such as the Company or a subsidiary of the
Company are often related to the knowledge, motives and intent of such director
or officer, that he is usually the only witness with knowledge of the essential
facts and exculpating circumstances regarding such matters and that the long
period of time which usually elapses before the trial or other disposition of
such litigation often extends beyond the time that the director or officer can
reasonably recall such matters; and may extend beyond the normal time for
retirement for such director or officer with the result that he, after
retirement or in the event of his death, his spouse, heirs, executors or
administrators, may be faced with limited ability and undue hardship in
maintaining an adequate defense, which may discourage such a director or officer
from serving in that position;
F. Based upon their experience as business managers, the Board of Directors of
the Company (the Board) has concluded that, to retain and attract talented and
experienced individuals to serve as officers and directors of the Company and
its subsidiaries and to encourage such individuals to take the business risks
necessary for the success of the Company and its subsidiaries, it is necessary
for the Company to contractually indemnify
its officers and directors and the officers and directors of its subsidiaries in
connection with claims against such persons in connection with their service,
and has further concluded that the failure to provide such contractual
indemnification could result in great harm to the Company and its subsidiaries
and the Company's shareholders;
G. The Company desires and has requested the Indemnitee to serve or continue to
serve as a director or officer of the Company and/or the subsidiaries of the
Company free from undue concern for claims for damages arising out of or related
to such services to the Company and/or the subsidiaries of the Company; and
H. The Indemnitee is willing to serve, or to continue to serve, the Company
and/or the subsidiaries of the Company provided that he is furnished the
indemnity provided for herein.
AGREEMENT
NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby agree
as follows:
1. Definitions.
(a) Covered Person. For purposes of this Agreement, a covered person shall
include the Indemnitee and any heir, executor, administrator or other legal
representative of the Indemnitee following his or her death or incapacity.
(b) Expenses. For purposes of this Agreement, expenses include all direct and
indirect costs of any type or nature whatsoever (including, without limitation,
all attorneys' fees and related disbursements and other out-of-pocket costs)
actually and reasonably incurred by the Indemnitee in connection with either the
investigation, defense or appeal of a proceeding or establishing or enforcing a
right to indemnification under this Agreement, Section 145 or otherwise.
(c) Proceeding. For the purposes of this Agreement, proceeding means any
threatened, pending, or completed action, suit or other proceeding, whether
civil, criminal, administrative, investigative or any other type whatsoever, and
including any of the foregoing commenced by or on behalf of the Company,
derivatively or otherwise.
(d) Subsidiary. For purposes of this Agreement, subsidiary means any corporation
of which more than 50% of the outstanding voting securities is owned directly or
indirectly by the Company, and one or more other subsidiaries, or by one or more
other subsidiaries.
2. Agreement to Serve. The Indemnitee agrees to serve and/or continue to serve
the Company and/or its subsidiaries in his present capacity, so long as he is
duly appointed or elected or until such time as he tenders his resignation in
writing, provided, however, that nothing contained in this Agreement is intended
to create any right to continued
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employment by Indemnitee.
3. Maintenance of Liability Insurance.
(a) The Company hereby covenants and agrees that, so long as the Indemnitee
shall continue to serve as an officer or director of the Company or any of its
subsidiaries, and thereafter so long as the Indemnitee shall be subject to any
possible proceeding by reason of such service, the Company, subject to Section
3(b), shall use reasonable efforts to obtain and maintain in full force and
effect directors' and officers' liability insurance (D&O Insurance) in
reasonable amounts from established and reputable insurers.
(b) Notwithstanding the foregoing, the Company shall have no obligation to
obtain or maintain D&O Insurance if the Company determines in good faith that
such insurance is not reasonably available, the premium costs for such insurance
are disproportionate to the amount of coverage provided, the coverage provided
by such insurance is limited by exclusions so as to provide an insufficient
benefit, or the Indemnitee is covered by similar insurance maintained by a
subsidiary of the Company.
4. Mandatory Indemnification.
(a) Right to Indemnification. In the event a covered person was or is made a
party or is threatened to be made a party to or is involved in any proceeding,
by reason of the fact that the Indemnitee is or was a director, officer or
employee of the Company (including any subsidiary or affiliate thereof or any
constituent corporation or any of the foregoing absorbed in any merger) or is or
was serving at the request of the Company (including such subsidiary, affiliate
or constituent corporation) as a director, officer or employee of another
corporation, or of a partnership, joint venture, trust or other entity,
including service with respect to employee benefit plans, such person shall be
indemnified and held harmless by the Company to the fullest extent permitted by
applicable law, against all expenses, liability and loss (including, without
limitation, attorneys' fees, judgments, fines, ERISA excise and other taxes and
penalties and amounts paid or to be paid in settlement) reasonably incurred or
suffered by such person in connection therewith. Such indemnification shall
continue after the Indemnitee has ceased to serve in such capacity and shall
inure to the benefit of his heirs, executors and administrators; provided,
however, that except for a proceeding pursuant to Section 7, the Company shall
indemnify any such person in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Company.
(b) Exception for Amounts Covered by Insurance. Notwithstanding the foregoing,
the Company shall not be obligated to indemnify a covered person for expenses or
liabilities of any type whatsoever (including, but not limited to, judgments,
fines, ERISA excise taxes or penalties, and amounts paid in settlement) which
have been paid directly to such person by D&O Insurance.
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(c) Exception for Claims Initiated by Covered Person. Notwithstanding the
foregoing, the Company shall not be obligated to indemnify or advance expenses
to a covered person with respect to proceedings or claims initiated or brought
voluntarily by a covered person and not by way of defense, except with respect
to proceedings brought to establish or enforce a right to indemnification under
this Agreement or any other statute or law or otherwise as required under
Section 145 of the Delaware General Corporation Law, but such indemnification or
advancement of expenses may be provided by the Company in specific cases if the
Board of Directors has approved the initiation or bringing of such suit.
(d) Exception for Lack of Good Faith. Notwithstanding the foregoing, the Company
shall have no obligation to indemnify a covered person for any expenses incurred
by a covered person with respect to any proceeding instituted by a covered
person to enforce or interpret this Agreement, if a court of competent
jurisdiction determines that each of the material assertions made by the covered
person in such proceeding was not made in good faith or was frivolous.
(e) Exception for Claims Under Section 16(b). Notwithstanding the foregoing, the
Company shall have no obligation to indemnify a covered person for expenses and
the payment of profits arising from the purchase and sale by a covered person of
securities in violation of Section 16(b) of the Securities Exchange Act of
1934,as amended, or any similar successor statute.
(f) Partial Indemnification. If a covered person is entitled under any provision
of this Agreement to indemnification by the Company for some or a portion of any
expenses or liabilities of any type whatsoever (including, but not limited to,
judgments, fines, ERISA excise taxes or penalties, and amounts paid in
settlement) incurred by him in the investigation, defense, settlement or appeal
of a proceeding but not entitled, however, to indemnification for all of the
total amount thereof, the Company shall nevertheless indemnify such person for
such total amount except as to the portion thereof to which the Indemnitee is
not entitled.
5. Mandatory Advancement of Expenses. The Company shall pay all expenses
incurred by a covered person, or in defending any such proceeding as they are
incurred in advance of its final disposition; provided, however, that if the
Delaware General Corporations Law then so requires, the payment of such expenses
incurred in advance of the final disposition of such proceeding shall be made
only upon delivery to the Company of an undertaking, by or on behalf of such
covered person, to repay all amounts so advanced if it should be determined
ultimately that such person is not entitled to the payment of such expenses by
the Company.
6. Notice and Other Indemnification Procedures.
(a) Promptly after receipt by a covered person of notice of the commencement of
or the threat of commencement of any proceeding, such person shall, if such
person believes that indemnification with respect thereto may be sought from the
Company under this
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Agreement, notify the Company of the commencement or threat of commencement
thereof.
(b) If, at the time of the receipt of a notice of the commencement of a
proceeding, the Company has D&O Insurance in effect, the Company shall give
prompt notice of the commencement of such proceeding to the insurers in
accordance with the procedures set forth in the respective policies. The Company
shall thereafter take all necessary or desirable action to cause such insurers
to pay, on behalf of the covered person, all amounts payable as a result of such
proceeding in accordance with the terms of such policies.
(c) In the event the Company shall be obligated to advance the expenses for any
proceeding against the covered person, the Company, if appropriate, shall be
entitled to assume the defense of such proceeding, with counsel approved by the
covered person (such approval not to be unreasonably withheld), upon the
delivery to the covered person of written notice of its election so to do. After
delivery of such notice, approval of such counsel by the covered person and the
retention of such counsel by the Company, the Company will not be liable to the
covered person under this Agreement for any fees of counsel subsequently
incurred by the covered person with respect to the same proceeding, provided
that (i) the covered person shall have the right to employ separate counsel in
any such proceeding at the covered person's expense; and (ii) if (A) the
employment of counsel by the covered person has been previously authorized by
the Company, (B) the covered person shall have reasonably concluded that there
may be a conflict of interest between the Company the covered person in the
conduct of any such defense, (C) the Company shall not, in fact, have employed
counsel to assume the defense of such proceeding, the fees and expenses of the
covered person's counsel shall be at the expense of the Company.
7. Right of Indemnitee to Bring Suit. If a claim for indemnification or
advancement of expenses hereunder is not paid in full by the Company within
sixty days after a written claim has been received by the Company, except in the
case of a claim for an advancement of expenses, in which case the applicable
period shall be twenty days, the covered person may at any time thereafter bring
suit against the Company to recover the unpaid amount of the claim. If
successful in whole or in part in any such suit, or in a suit brought by the
Company to recover and advancement of expenses pursuant to the terms of an
undertaking, the covered person shall be entitled to be paid also the expense of
prosecuting or defending such suit. In (i) any suit brought by a covered person
to enforce a right to indemnification hereunder (but not in a suit brought by a
covered person to enforce a right to an advancement of expenses) it shall be a
defense that, and (ii) in any suit by the Company to recover an advancement of
expenses pursuant to the terms of an undertaking the Company shall be entitled
to recover such expenses upon a final adjudication that, indemnification is not
permitted by applicable law. Neither the failure of the Company (including its
Board of Directors, independent legal counsel or its stockholders) to have made
a determination prior to the commencement of such suit that indemnification of
the covered person is proper in the circumstances, nor an actual determination
by the Company (including its Board of Directors, independent legal
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counsel or its stockholders) that indemnification is not proper, shall create a
presumption that the covered person is not entitled to indemnification or, in
the case of such a suit brought by a covered person, be a defense to such suit.
In any suit brought by a covered person to enforce a right to indemnification or
to an advancement of expenses hereunder, or by the Company to recover an
advancement of expenses pursuant to the terms of an undertaking, the burden of
proving that the covered person is not entitled to be indemnified, or to such
advancement of expenses, shall be on the Company.
8. Limitation of Actions and Release of Claims. No proceeding shall be brought
and no cause of action shall be asserted by or on behalf of the Company or any
subsidiary against the Indemnitee, his spouse, heirs, estate, executors or
administrators after the expiration of one year from the act or omission of the
Indemnitee upon which such proceeding is based; however, in a case where the
Indemnitee fraudulently conceals the facts underlying such cause of action, no
proceeding shall be brought and no cause of action shall be asserted after the
expiration of one year from the earlier of (i) the date the Company or any
subsidiary of the Company discovers such facts, or (ii) the date the Company of
any subsidiary of the Company could have discovered such facts by the exercise
of reasonable diligence. Any claim or cause of action of the Company or any
subsidiary of the Company, including claims predicated upon the negligent act or
omission of the Indemnitee, shall be extinguished and deemed released unless
asserted by filing of a legal action within such period. This Section 8 shall
not apply to any cause of action which has accrued on the date hereof and of
which the Indemnitee is aware on the date hereof, but as to which the Company
has no actual knowledge apart from the Indemnitee's knowledge.
9. Non-exclusivity. The provisions for indemnification and advancement of
expenses set forth in this Agreement shall not be deemed exclusive of any other
rights which the Indemnitee or any covered person may have under any provision
of law, the Company's Certificate of Incorporation or Bylaws, the vote of the
Company's shareholders or disinterested directors, other agreements, or
otherwise, both as to action in his official capacity and to action in another
capacity while occupying his position as an officer, director or employee of the
Company, and the Indemnitee's right hereunder shall continue after the
Indemnitee has ceased to so act and shall inure to the benefit of any heir,
executor, administrator or other legal representative of the Indemnitee.
10. Interpretation of Agreement. It is understood that the parties hereto intend
this Agreement to be interpreted and enforced so as to provide indemnification
to the Indemnitee to the fullest extent now or hereafter permitted by law. In
case of any conflict between the terms of this Agreement and the Company's
Certificate of Incorporation as amended, the Company's Certificate of
Incorporation shall control.
11. Severability. If any provision or provisions of this Agreement shall be held
to be invalid, illegal or unenforceable for any reason whatsoever, (i) the
validity, legality and enforceability of the remaining provisions of the
Agreement (including, without limitation, all portions of any paragraphs of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that are not themselves invalid,
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illegal or unenforceable) shall not in any way be affected or impaired thereby,
and (ii) to the fullest extent possible, the provisions of this Agreement
(including, without limitation, all portions of any paragraphs of this Agreement
containing any such provision held to be invalid, illegal or unenforceable, that
are not themselves invalid, illegal or unenforceable) shall be construed so as
to give effect to Section 10 hereof.
12. Modification and Waiver. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by both of the parties
hereto. No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provision hereof (whether or not similar)
nor shall such waiver constitute a continuing waiver.
13. Successors and Assigns. The terms of this Agreement shall bind, and shall
inure to the benefit of, the successors and assigns of the parties hereto.
14. Notice. All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed duly given (i)if delivered by
hand and receipted for by the party addressee or (ii) if mailed by certified or
registered mail with postage prepaid, on the third business day after the
mailing date. Addresses for notice to either party are as shown on the signature
page of this Agreement, or as subsequently modified by written notice.
15. Governing Law. This Agreement shall be governed exclusively by and construed
according to the laws of the State of Delaware, as applied to contracts between
Delaware residents entered into and to be performed entirely with Delaware.
16. Consent to Jurisdiction. The Company and the Indemnitee each hereby
irrevocably consent to the jurisdiction of the courts of the State of Delaware
for all purposes in connection with any action or proceeding which arises out of
or relates to this Agreement.
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The parties hereto have entered into this Indemnity Agreement effective as of
the date first above written.
AMBASSADORS GROUP, INC.
By
Its
Address:
INDEMNITEE
By
Address:
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